Employer Intentional Torts


The employment act is the main law that governs the conduct and relationship between an employer and employee. However, the Constitution is the supreme law that governs all other laws which derive their validity from the Constitution. The legislature has a constitutional mandate to make laws regarding the employment. The laws made by the legislature should further the interest and welfare of the employees at the workplace. It is the duty of the employer to provide health and safety working place free from any perils. Failure of the employers to provide necessary equipment that offers safety can make them liable in case the employee is injured. However, currently the employers are only liable for those acts that are intentional. When the employees are injured by acts or omissions of the employer and when such injuries are unforeseeable, the employer is not liable. Under the current law, deliberate intent to cause harm by the employer must be proved by the employee. The employer is under obligation to ensure safety of workers. However, in the event that the employee fail to utilize the equipment provided by the employer, the employer is not liable in case the employee is injured in such conditions. The assignment of workers to possibly hazardous conditions does not constitute deliberate intent to harm and does not create legal responsibility for employment willful tort. In such situations, workers' compensation is the only employee's remedy.

The Constitution of US mandates the General Assembly to enact laws that provide the health, safety, well-being and welfare of the workers. The constitution also empowers the general assembly to adopt laws facilitating the resolution of employee’s injury claims through Ohio Workers Compensation program. In 2005, the Ohio legislature approved employer intentional tort statute.The provisions of the statute allow the employees, who are injured in the course of the employment, to recover damages for the harms outside those provided under the workers’ compensation law. The claims, brought under the 2005 statutes, are to be referred to as the employer intentional torts. The employment intentional act contains the provision concerning employer intentional torts that any claim instituted against employers by employees, for damages occasioning from deliberate torts committed by the employer in the course of employment, the employer shall not be held to be liable for torturous acts unless the employee can prove that the acts of the employer were intentional and that the injury was substantially certain to happen. According to the statute, “substantially certain” means that the employer must act with the intention to cause harm to the employee or to make him suffer a disease or cause death. Individual acts of employer such as intentional removal of an equipment safety guard or intentional misrepresentation of toxic create a rebuttable assumption that the removal or misrepresentation was done with intention of causing a harm of another where such harm or condition or death arises as a direct result.

The statute upholds the provisions of the employment intentional tort in that the statute provides that an employer will be presumed to commit a tort deliberately with intent to harm the employee where one removes an equipment safety guard. The statute deviates from the general provision that an employer will be liable for intentional torts where he/she intends to harm the employees. The statute makes it difficult for an employee to prove an employer deliberate tort claim. It is for a reason that earlier before the enactment of this statute, an employee only needed to show that the injury that happened to the cause of employment was only “substantially certain” to happen. The employee could prove the claims through a number of ways that did not necessitate the requirement of actual “intent to injury” on the part of the employer. Consequently, under the statute, an aggrieved employee cannot succeed in one’s claims of deliberate tort against his employer unless he can prove that such a tort was committed with deliberate intent to cause harm.

The statute has received reactions and rejections, thus, the field subject of employer intentional tort is controversial. Some people support the 2005 statute while others do not. In various cases, plaintiffs have argued that the statute is in violation of section 34 and 35 of the Constitution of Ohio. In a separate case of Kaminsky v. Metal & Wire Products Co and Stetter v. R. J. Corman Derailment Services, L. L. C. The Supreme Court upheld the Constitutionality of the 2005 statute (Mahboob, 2010). The decision of the court is an imperative one for employers as it approves that an injured employee damages in Ohio State comes absolutely from the workers’ compensation system unless the worker can prove the tremendously high burden of showing that the employer’s actions that caused injuries were committed with deliberate intent to cause harm.

In the above cases, the injured workers, who were the plaintiffs, moved to Supreme Court challenging the constitutionalism of the 2005 statute. The plaintiff in the first suit brought an action against her employer alleging that the employer had committed a common law intentional tort and that the statute restricting such suits was unconstitutional. The plaintiff had been injured while loading a coil into a steel press. The plaintiff specifically alleged the violation of section 34 and 35 of Ohio constitution. The court rejected the claims of Kaminski and ruled that the statute was constitutional and enforceable (Mahboob, 2010).

In the second case of Stetter, the employer alleged that because the plaintiff injuries happened after the 2005 statute has been effective, the claims should be dismissed for failure of the plaintiff to demonstrate employer’s “deliberate intent” to harm him. The statute requires the employee to prove the employer’s actual “deliberate intent.” The plaintiff cause of action was that the statute violates several provisions of the Constitution. The court rejected claims by the plaintiff stating that the statute has taken away the onerous requirements preventing relief such as the injured worker can only receive the damages in excess of what is provided by workers’ compensation benefit. The court found that even those injured workers, which cannot prove the “deliberate intent” the requirement in intentional tort, are provided significant remedies through workers’ compensation system. Although the statute limits the injured worker to sue for common law torts, it does not restrict the rights.

The constitutionality of the 2005 and former statutes one mployer deliberate tort has been in inquiry ever since 1991 (Mahboob, 2010). The decision of the Ohio Court on the validity of the Act affords some long awaited conclusiveness to the employer intentional tort an issue that has been of concern to many. Furthermore, the ratification from the Ohio Supreme Court that the Act is legal keeps the threshold high for employees by upholding the high standard for receiving former summary judgment and determining their assertions. The decision of the court is a setback to the injured employees who try to sarong the workers compensation system by pursuing remedies in the court. In another case of Houdek v. ThyssenKrupp, the court affirmed the standards set by the statute before that an injured worker can recover damages. The plaintiff must prove the actual intent of the employer to injure him.

The plaintiff broke the leg and injured an ankle while working in the dimly lit aisle at his employer’s warehouse. At the time of injury, the employee was on light duty as he had another injury at another workplace. The plaintiff argued that his injury was due to employer’s failure to provide safety such as reflective vests. Houdek contended that the employer intended to harm by directing him to work in the aisle with the knowledge that harm would be certain or substantially certain to happen and not taking further actions to mitigate the injury. However, the court found that the plaintiff had not provided enough evidence to prove intent to harm by the employer, the company never intended to injure the plaintiff. The court was of the opinion that even although the employer failed to implement preventive safety measures, such an omission did not constitute convincing evidence of deliberate intent to harm by the employer. Workplace harms caused by an employer assigning an employee to a possibly hazardous condition- absent proof that the decision was made with clear and unequivocal intent to harm- will not be the ground for effective intentional tort claim in Ohio (Carr III, 2012).

The decision of the court in this case and in the case of Hewitt v. L. E. Myers, employers should feel secure in the certainty of the remedies and legal responsibility that arise from the workers, who are harmed at the place of work. The workers’ compensation system addresses the injuries at the workplace and guarantees that the workers are justly compensated for harms caused by the employers. In the rare occasion that the employer would act with actual deliberate intent to harm the employee, the 2005 statute gives an additional remedy for the aggrieved worker. The Houdek and Hewitt cases make it clear that a deliberate tort suit against an employer is an exception to the rule and not the rule.

However, the employers are required to take all necessary steps to mitigate injuries at the place of work. In addition, the employers are required to adopt operative safety programs, procedures and training measures to lessen high workers’ compensation rates and the probable for meritless but expensive lawsuits. The 2005 statute created a rebuttable presumption that an employer intended to harm the worker if an injury or occupational disease or condition occurs as a direct outcome of the “intentional removal by an employer of tool safety guard or intentional misrepresentation of poisonous or dangerous substance (Carr III, 2012). Employers are supposed not to remove equipment safety guards or to misrepresent the nature of lethal substance intentionally or else they find the statute does more harm than good on them. The key issue here is that the employee must prove an employer intentional tort, proof of the intent of the deliberate is now mandatory. The former substantial certainty iteration of the intentional tort is currently deliberate intent to cause harm. The twofold basis for legal responsibility is now one. The court has over several years gone over this many times. The section of the 2005 statute creates a rebuttable presumption of the intent to cause harm when an employer intentionally removes an equipment safety guard. The courts in seeking to establish deliberate intent it precluded the use of an objective test –what a rational wise employer would believe, and adopted a subjective test –what the employer truly believed. Thus, the court acknowledged the essence of the injured worker asserting the employer’s deliberate intent. Consequently, even in circumstances when the employer puts the worker in harm’s way resulting in a tragic accident, and the evidence shows that the accident may have been prevented had safety measures been taken, that does not substantiate the employer intentionally envisioned to harm the employee.

The present common law is construing the intentional torts, augurs well for employers in the State of Ohio. It creates immunity in the practice because a plaintiff must ascertain actual precise intent to cause harm. This standard of proof is very difficult to meet. The employer is certain that if accident happens in the workplace, even where the employer causes such accident, the workers compensation system is in place to offer certainty and safeguard from excess legal responsibility.

            The court decision in Hewitt and other discussed cases above comes as a welcome clarification for Ohio employers. While most can approve the assembly’s intent to penalize an employer who would intentionally take away the safety guard from a machine, endangering its employees, the court’s analysis strikes a practical balance: an employer will not have unforeseen liability or a deliberate tort where an employee chooses not to make use of existing personal protective equipment (Mahboob, 2010). However, it remains imperative for employers to stress their safety policies, to safeguard the welfare of their workers and avoid the workers’ compensation expenses and lost yield of inevitable work related harms. The court reinforced the exclusivity of the workers’ compensation system for harms occasioned by the negligence or recklessness of the employer. The employer will no longer be required to pay damages an injured employee twice. This means that the employee claim against the employers will considerably decrease and consequently help save Ohio employments.

Employees see the 2005 statute as to protecting the employers at the expense of their safety at the place of work. The statute restricts the workers from further moving to the court to seek for damages where the employer’s fault result or omission occasions injuries to the employees. The statute puts a high stand that these employees are required to prove. Proving deliberate intent difficult, and the procedure involved to prove the intent is complicated. As a result, most employees do not move to court to seek damages even where the deliberate intent to injure by the employer is clear. The employees are forced to seek for remedies from the workers’ compensation system only. The purpose of the employment laws is to protect the interest of the employees at the place of work and also to ensure that the employer protect these rights. The employer should be held liable for any act done by him that is a detriment to the employee. As long as it can be proved that the acts or omissions of the employer were a direct result of the injuries to the workers then it is not necessary to prove the intent. The actual intent is a high degree proof that should not be imposed on the employees. The statute seems to protect the interest of the employers than the interest of employees. Further, the statute assures certainty to employers that there is no excess liability on them as a result of injury of employees at the place of work. The statutes protect the employees from further liability under any law. The 2005 statute limits employees’ actions for remedies of the workers’ compensation system. Workers can only recover damages provided under the workers compensation system. Even although the intention of the legislature is penalized employers for their acts that cause injury to employees, on the other side, it imposes a high standard of proof. The Acts, especially mentions certain acts that are to be construed to mean deliberate intent to injure by the employer. Such acts include deliberate removal of implement safety guard or misrepresentation of toxic or hazardous substances. Where the employer commits these acts, he shall be liable, and the employee can recover damages in court. However, employers are required to train the employee’s in order to minimize incidences of injuries at the place of work and avoid unnecessary suits.

In addition, employers are supposed to install safety equipment and provide protective devices for employees. Employer’s failure to do so can find that the statute does more harm than good to them. However, the employer shall not be liable where employees fail to utilize the resources afforded at the place of work by the employers. The constitution empowers the Assembly to enact laws that provide for health, safety and welfare of the workers. Most of the plaintiffs who moved to the court alleged that the statute was in contravention of the constitutional provisions specifically section 34 and 35. The employees feel that their rights are not well protected and that the statute does not guarantee their safety. Further, the statute does not promote the welfare and wellbeing of employees. The court held the predecessors of the statute to unconstitutional while the 2005 statute to be constitutional despite the claims that the statute is unconstitutional. Over several years, employees in the previous statutes were only required to prove that the injury was substantially certain to happen. (Rosby, 2013). This was the only requirement, and many employees would easily prove the claims against the employers. Consequently, the employers were liable both under the workers compensation system and under the statute.

The legislature intended to penalize the employers under the both workers’ compensation system and statute save for statute the standard of proof is high. The decision of the court to hold the provisions of the statute to be constitutional brought finality to the issue of employer intentional tort. It shall be remembered these issues remained pending waiting for determination by the court. The employers under the statute are now protected from excess liability a decision that is welcomed by many. To employers, the statute offers them adequate protection against suits to the court by employees injured at the place of work.

The Ohio’s Supreme Court’s views are remarkable because the Court had for several years overruled various earlier efforts by the General Assembly to limit the scope of employer intentional tort suits  even declining to accept the idea that a precise intent to cause harm is essential to a finding of deliberate misconduct (Rosby, 2013).


Both the Constitution of Ohio, the employment act and the 2005 statute provide protection to the employees in against acts and omissions of the employer at the place of work. The recent cases that the Ohio Supreme Court have decided, has upheld the constitutionality of the 2005 statute that has been in dispute over several years. The law is seen to favor the employer while employees dispute it terming it to be in contradiction with the Constitution of the Ohio. However, the court has contended that Assembly’s intent in ratifying the employer intentional tort law is to enable recovery for employer deliberate torts only when an employer acts with precise intent to cause harm. While there may be other challenges to the statute’s present construction, this is a substantial outcome for Ohio employers.